Marty Lederman examines the legal arguments behind the interrogation of Mohammed al-Qahtani at Gitmo, as reported in Time. The techniques used against Qahtani clearly violate the Uniform Code of Military Justice, as government lawyers pointed out at the time. So how did the military get around the law? The April 4, 2003 DoD Working Group Report states that
“[D]efenses relating to Commander-in-Chief authority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific … Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority.”
The entire structure of permissible violations of American law, the UCMJ, and Geneva seems therefore to have been made legally possible solely by the president’s invocation of his wartime authority as commander-in-chief, as crafted in now-infamous Justice Department memos. In other words, the entire abuse scandal may be rooted directly in decisions made in the Oval Office. Marty has more questions, but his analysis, as always, is a must-read.
The Dish 